Humanitarian healthcare under threat: Caregivers at risk for treating those in need

In recent years, health facilities and workers in some conflict zones have come under attack from combatants, in violation of international humanitarian law. But as a former Doctors Without Borders/Médecins Sans Frontières (MSF) Canada board member and field worker reports in a new research paper, doctors and nurses in some countries also face prosecution or worse for abiding by medical ethics obligations to treat anyone in need of care, whoever they may be.

One fundamental element of Doctors Without Borders/Médecins Sans Frontières (MSF)’s humanitarian action is our adherence to medical ethics, in particular our commitment to treat anyone in need, no matter who they are or why they require our help.

This commitment is expressed in the MSF Charter and in our official statement of principles, which declares that “MSF missions are carried out in respect of … the duty to provide care without causing harm to either individuals or groups. Each person in danger will be assisted with humanity, impartiality and in respect of medical confidentiality.” Furthermore, “no person carrying out a medical activity can be forced to perform acts or operations in contradiction to the professional code of ethics or the rules of international law.”

MSF’s ability to act in accordance with medical ethics is in turn based on our commitment to the humanitarian principles of neutrality, impartiality and independence: We deliver care wherever the needs are greatest, without interference from political authorities, military powers or financial providers.

But, as was explored in the most recent issue of Dispatches, the MSF Canada magazine, this commitment can be easier said than done. Aside from the challenges of balancing our commitment to neutrality with our mission to deliver medical care to everyone in need, it’s also clear that MSF cannot always take action wherever or whenever we want: governments and militaries can still stop our medical teams from being in present in areas they control, and in many cases seek to block our access to the people who need our assistance most.

This can be particularly true in conflict zones, where some combatants would often prefer to see their opponents — and anyone else they see as complicit or as siding with the enemy — deprived of essential health services. That is why the protection of independent, neutral and impartial medical care is a central tenet of international humanitarian law, as enshrined in agreements such as the Geneva Conventions. MSF and other medical humanitarian aid providers can cite international humanitarian law, and the human right to healthcare, when calling upon authorities to allow us access to people in need – including wounded and sick combatants, civilians in armed conflict and people living in societies that face threats from terrorism.

But this protection has in recent years itself come under increasing assault. Hospitals, clinics and even medical caregivers themselves have been fired upon, bombed and in some cases deliberately attacked in conflict zones from Afghanistan to South Sudan, in violation of international humanitarian law and the accepted rules of war. MSF health workers have been killed while working to provide care to people affected by war and violence, and MSF-supported clinics or hospitals have been hit or destroyed by airstrikes in places such as Syria and Yemen — so far at least 16 times in 2018 alone.

These assaults on humanitarian medical care have been widely reported and condemned, and states have been criticized for failing to live up to their legal and moral obligations. In 2016, the United Nations Security Council adopted Resolution 2286, which reiterated that member states involved in armed conflict must comply with their obligations to protect the sick and wounded, as well as medical caregivers, in war zones.

Despite those efforts, attacks on health workers have continued. MSF has twice addressed the UN Security Council, including remarks by MSF International President Dr. Joanne Liu five months following the adoption of Resolution 2286 criticizing the measure as meaningless in the face of ongoing violations. Two years ago, the organization launched the #NotATarget social media campaign to share indignation and call attention to continuing attacks on patients and healthcare providers in conflict settings, an effort that remains sadly as relevant today as when it began.

The criminalization of healthcare

But assaults on healthcare providers are not limited to airstrikes. In a new report commissioned by the United Nations Special Rapporteur on Health, Dr. Dainus Punas, former MSF Canada board member and MSF international secretary-general Marine Buissonnière, along with co-authors Sarah Woznick and Leonard Rubenstein, show that some governments are using other measures to punish healthcare workers who provide care to people considered enemies of the state — in some cases criminalizing doctors and nurses for carrying out their ethical and professional duties as caregivers.

When reached by phone for an interview, Buissonnière says that, in some countries, “healthcare workers are being harassed, arrested, prosecuted, jailed or subjected to administrative sanction from states for providing care to people in need.”

“It’s particularly common when healthcare staff assist groups that are labeled as terrorists or enemies by the state, and find themselves prosecuted for actually providing care to those labeled as such,” she says. Buissonnière and her co-authors refer to this as the “criminalization of healthcare.”

Some of the examples in the report reflect familiar tensions when it comes to protecting impartial medical care in conflict zones. In Syria, laws passed by the ruling regime after the start of the ongoing civil war allow for the prosecution of anyone who threatens “public security,” and do not make an exception for the provision of medical care. This has resulted in the detention — and in some cases the reported torture and death — of doctors accused of providing care to opposition fighters in places like Aleppo. In Pakistan, doctors have been arrested for providing treatment to suspected militants, and in Iraq, doctors and nurses who continued to work in hospitals during the ISIS occupation of Mosul have been charged with terrorism.

“In Iraq, counter-terror courts are prosecuting a bunch of people who lived in ISIS-held areas, and some of them may have been doctors and nurses and people who stayed on in hospitals to keep on discharging their responsibilities as medical professionals,” says Buissonnière. “And they can now be prosecuted as having been part of the terrorism effort because they are considered as having been a part of the ISIS administration. And the only reason you hear about it is because somebody knows of a case or of a medical doctor who is being considered for the death penalty or for prison for life, but there is no public record, or the records are not publicly accessible.”

It’s not just in conflict zones where such cases can occur. In Bahrain, some of the doctors and nurses who provided care to people wounded in political protests in 2011-12 were arrested and others lost their jobs. In Ethiopia, when doctors refused to comply with orders to not treat injured protestors, some were arrested and others have gone missing.

Interfering with the ethical duty to provide medical care

“At all times, states have an obligation to respect, protect or fulfill the full spectrum of human rights, including the right to health,” Buissonnière says. “Respecting the right to health means that states must refrain from discrimination in respect to access to healthcare services, and also refrain from compelling providers from delivering healthcare to certain groups or individuals. It really is about the state not interfering with the medical provider’s overarching responsibilities and ethical duty to provide medical care on the basis of need. But what we’re seeing is that this is being put into tension by counter-terrorism laws.”

Buissonnière says that many domestic counter-terrorism laws, through which states seek to limit access of suspected terror groups to financial and material support, are written in ways that put them in conflict with obligations to uphold the right to healthcare and allow medical workers to fulfill their ethical duties to provide care. But framing these two objectives as necessarily mutually exclusive can be a false choice.

In some cases, laws other than those created by counter-terror legislation are used to prosecute medical personnel, but “the underlying conduct for which people are being prosecuted is because they treated somebody considered a terrorist or an enemy,” she says. “At the end of the day, there need to be explicit exceptions that are carved out for medical care, outside or away from being considered as material support.” In the report, Canada is listed among the examples of nations where counter-terror legislation is framed in accordance with international humanitarian law and obligations to uphold access to medical care.

“It might sound simplistic, because we all know that norms, that laws in and of themselves, don’t change the reality on the ground,” Buissonnière says. “But we need to dig in our heels, we need to draw a line in the sand in terms of what’s acceptable and what’s not, and not let unravel concepts or notions that once were understood as obvious: that people could not be rightfully excluded from care just because they were considered enemies of the state.”

In their report, Buissonnière and her colleagues focus on local health providers, who are probably more at risk than those working with major international organizations like MSF. But the fundamental concern is the same, and requires the same willingness to publicly stand up for the norms of international humanitarian law.

“I think this is an advocacy role that is MSF is well suited to play in places where it witnesses it,” she says. “MSF as a medical provider should denounce when it’s confronted with situations of criminalization of healthcare, the way it has when it’s confronted with denial of care to patients for other reasons.”

“But this should also be the work of others, including organizations that are human rights oriented or keen to influence international norms,” she says. “It’s really about working to shield medical care from criminalization. That’s the golden standard.”